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Cite as Evans, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 633-635. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.

Article 89

Malcolm Evans

1. History of the provision
2. Meaning and purpose of the provision
3. Problems concerning the provision

PART IV
FINAL PROVISIONS

ARTICLE 89

The Secretary-General of the United Nations is hereby designated as the depositary for this Convention.

1. History of the provision

     1.1. - As is the case with most of the articles in this Part of the Convention, the original text of Article 89 (then Article A) was submitted by the Secretary-General of the United Nations to the Vienna Conference in document A/Conf.97/6 (Official Records, I, 66-70). The document was prepared in response to a request by the General Assembly, contained in Resolution 33/93 of 16 December 1978 and entitled «United Nations Conference on Contracts for the International Sale of Goods», that the Secretary-General, among other things, prepare and circulate draft provisions concerning implementation, reservations and other final clauses for the draft Convention on Contracts for the International Sale of Goods.

     1.2. - The draft articles set forth in document A/Conf.97/6 were not submitted for approval by UNCITRAL, the Commission being of the view that, with the exception of Article (X) of the draft Convention (ultimately adopted as Article 96), it should not officially comment on the suitability of the substance of such provisions (Official Records, I, 67). However, an earlier version of the draft final clauses had been placed by the Secretary-General before the tenth session of the Commission and the texts proposed to the Vienna Conference took account of the views expressed at that session by representatives and observers.

     1.3. - The text of Article 89 is identical to that of Article 27 of the 1978 United Nations Convention on the Carriage of Goods by Sea (hereafter referred to as «the Hamburg Rules»). [page 633]

2. Meaning and purpose of the provision

     2.1. - Following general United Nations practice the Secretary-General of that organisation has invariably been designated as depositary for conventions based on preparatory work carried out within UNCITRAL, irrespective of the State in which the Diplomatic Conference adopting the Convention has been held. Less consistent has been the practice of organs of the United Nations in relation to the listing in a single article of the functions of the depositary. The drafters of the present Convention have omitted such an article, although specific references to the depositary are to be found in Articles 91(4), 93(2), 97(2), (3) and (4), 99(6) and 101(1) and (2).

     2.2. - It may therefore be assumed that the functions of the Secretary-General as depositary to which no specific reference is made in the Convention are those set out in Article 77(1) of the United Nations Convention on the Law of Treaties, which provides that the functions of a depositary, unless otherwise provided in the treaty or agreed by the Contracting States, comprise in particular:

... (a) keeping custody of the original text of the treaty and of any full powers delivered to the depositary;

(b) preparing certified copies of the original text and preparing any further text of the treaty in such additional languages as may be required by the treaty and transmitting them to the parties and to the States entitled to become parties to the treaty;

(c) receiving any signatures to the treaty and receiving and keeping custody of any instruments, notifications and communications relating to it;

(d) examining whether the signature or any instrument, notificaiion or communication relating to the treaty is in due and proper form and, if need be, bringing the matter to the attention of the State in question;

(e) informing the parties and the States entitled to become parties to the treaty of acts, notifications and communications relating to the treaty;

(f) informing the States entitled to become parties to the treaty when the number of signatures or of instruments of ratification, acceptance, approval or accession required for the entry into force of the treaty has been received or deposited;

(g) registering the treaty with the Secretariat of the United Nations;

(h) performing the functions specified in other provisions of the present Convention. [page 634]

3. Problems concerning the provision

     3.1. - Should any problems arise relating to the functions of the depositary, it would seem that they would be settled in accordance with Article 77(2) of the United Nations Convention on the Law of Treaties which provides as follows:

In the event of any difference appearing between a State and the depositary as to the performance of the latter's functions, the depositary shall bring the question to the attention of the signatory States and the contracting States or, where appropriate, of the competent organ of the international organization concerned. [page 635]


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